possibly noteworthy wrote:
Bellovin on Decius's HOPE topic

He seems to be searching for reason and order in an area that is patently unreasonable and hypocritical. In the case of U.S. citizens, the information customs agents are digging through their laptops for would be protected by a warrant requirement if it was transmitted Internationally over the Internet instead. The FISA update signed yesterday by George Bush makes this even more the case than it was before, as now warrants are required to monitor the communications of U.S. persons even if they are overseas. These searches are not part of a comprehensive approach to preventing the smuggling of information. No comprehensive approach is possible because warrant requirements and encryption stand in the way. The fact that neither of these things stand in the way of customs officials at the border is an accident of time, space, and technology, and not a willful result of policy.

These facts completely undermine the arguments made in the senate hearing, particularly by the Heritage Foundation's representative, that these searches are necessary for some sort of policy reason and legalistic objections to them miss the point. There is no policy reason. If there were, then you'd have to allow warrantless law enforcement monitoring of all international communications and you'd have to require cryptographic key escrow. We don't. We're not going to. We don't need to. And so we don't need to do these searches either.

RE: FISA and Border Searches of Laptops

Perhaps the most repellent part of this bill (though that's obviously a close competition) is 802(c) of the telecom amnesty section. That says that the Attorney General can declare that the documents he submits to the court in order to get these lawsuits dismissed are secret, and once he declares that, then: (a) the plaintiffs and their lawyers won't ever see the documents and (b) the court is barred from referencing them in any way when it dismisses the lawsuit. All the court can do is issue an order saying that the lawsuits are dismissed, but it is barred from saying why they're being dismissed or what the basis is for the dismissal.

So basically, one day in the near future, we're all going to learn that one of our federal courts dismissed all of the lawsuits against the telecoms. But we're never going to be able to know why the lawsuits were dismissed or what documents were given by the Government to force the court to dismiss the lawsuits. Not only won't we, the public, know that, neither will the plaintiffs' lawyers. Nobody will know except the Judge and the Government because it will all be shrouded in compelled secrecy, and the Judge will be barred by this law from describing or even referencing the grounds for dismissal in any way. Freedom is on the march.

This is the best article I've found on the FISA capitulation. I don't understand how they did a 180 on this.

George Bush's latest powers, courtesy of the Democratic Congress - Glenn Greenwald - Salon.com

Although the United States has maintained complete and uninterrupted control of Guantanamo for over 100 years, the Government’s view is that the Constitution has no effect there, at least as to noncitizens, because the United States disclaimed formal sovereignty in its 1903 lease with Cuba. The Nation’s
basic charter cannot be contracted away like this. The Constitution grants Congress and the President the power to acquire, dispose of, and govern territory, not the power to decide when and where its terms apply.

The Supreme Court has ruled that Habeas applies in Gitmo... The Military Commissions Act was unconstitutional because it did not provide an adequate process for detainees. This mostly means there will be more hearings to determine what sort of legal process is required. The right is likely to likely to blow their collective top on this. Scalia starts things off in his dissent:

[This decision] will almost certainly cause more Americans to be killed... The Nation will live to regret what the Court has done today. I dissent.

In general these judges "respectfully dissent" as Roberts did...

The Volokh Conspiracy - BREAKING - Gov't Loses Boumediene 5-4:

When liberal blogs picked up the story that McCain had moved to the left on wiretapping, the McCain campaign issued a letter insisting that he still supported unconditional immunity, as well as new rules that would expand the nation's spy powers.

The campaign's response was consistent with McCain's past positions and votes. But it riled Andrew McCarthy at the conservative National Review Online, who read the campaign's position as a disavowal of Bush's warrantless wiretapping program, and a wimpy surrender of executive power to Congress.

That's when the campaign issued the letter explaining McCain's new views of executive power, and revealing that McCain would, in certain future circumstances, rely on the same theory of executive power in wartime.

The closer we get to election day:
1. The harder it will be to know whether or not the candidates are lying.
2. The more authoritarian the candidates will act.

So it is now completely impossible to know what McCain actually thinks, but it is worth noting that the legacy of Bush's creative approach to the separation of powers is that Republican party now openly wants a candidate who won't let trite things like the Constitution and the Oath of Office get in their way, and they want their candidates to come out and say this publicly.

I do not see any reason why any libertarian would continue to be associated with the Republican party. There comes a point where you have to take a stand for something other than lowering taxes or you are not really a libertarian, and what better time than when your political party has become openly hostile to the Constitution?

McCain is shifty on spying

Right now, Barr’s polling mimics the performance of Ross Perot and his Reform Party candidacies in 1992 and 1996. In his first run, Perot won nearly 14 percent of the vote in Georgia. In his second, he dropped to 6 percent.

But in each case, Bill Clinton was the beneficiary. In ‘92, Clinton won Georgia. In ‘96, he came within 1.2 percent of taking the state.

Don’t think that the Obama campaign isn’t watching every move that Barr makes. Should he become the Libertarian candidate, how Barr does in Georgia — worth 15 electoral votes — becomes especially important.

Bob Barr's potential run for the presidency could spice up this election season. I like Barr. I think he is the most professional politician associated with the Libertarian party, and I think he is genuinely interested in civil liberties. His bid for the Presidency would help raise the profile of the Libertarian party, but at the expense of damaging it's soul.

His bid has a chance of being popular this season because there are a lot of people who are disaffected with the Republican party, and there are a lot of people who are disaffected with John McCain. The trouble is that there are also a lot of people involved in the Republican party who don't understand what Libertarian means. They think it means that you "support a smaller government." Thats not exactly correct. Its true in the sense that triathletes are interested in bicycling, but its not the complete picture.

It is because of this misunderstanding you have people who think Ron Paul is a Libertarian. He isn't. His political philosophy most closely resembles that of civil war era state's rights confederates. Thats nothing like Libertarianism, but there are an aweful lot of people who don't understand the differences, and these people are likely to vote for Barr.

It is because of this misunderstanding that you get what I refer to as "Neal Boortz Libertarians." People who are died in the wool partisan Republicans who would never vote for a Democrat if their life depended upon it, who are socially conservative and have absolutely caustic views toward civil liberties who for some reason think of themselves as "Libertarians." These people are not Libertarians, but they are likely to vote for Barr.

Add in the ultraconservatives who hate McCain purely because he is willing to consort with Democrats and who might be looking for a protest vote. Ultraconservatives are certainly not Libertarian, but they are likely to vote for Barr, who is a fairly conservative guy.

So the question is, what happens after this election is over? Do some of these people who voted Libertarian for the first time in their lives stick around? I guess thats the point, but its a bit like Hong Kong's absorption into China. Will contact with Libertarian thinkers at Reason and Cato cause these conservatives to reconsider their authoritarianism or will we be seeing bumper stickers that read "Libertarians for the Patriot Act?"

Barr could put Georgia in play, and the Obama campaign knows it | Political Insider

possibly noteworthy wrote:
George Packer:

Have the Republicans run out of ideas?

It continue to be shocked to see opinions like this given all the talk of the permanent majority after 2004. I think Republicans over estimated their position in 2004 and this article under estimates their position in 2008. Do Democrats have ideas? About healthcare perhaps, but not about Iraq nor social security nor the economy. The fact that Republicans have been winning on wedge issues does go to show you that they don't have real issues to win on, but I don't think that Democrats are any more charged. The electricity in this year's Democratic campaign has more to do with the moral victory of electing someone who isn't a white male and ending an unpopular war. Are they going to unfuck the housing crisis? Its over their heads. Ultimately, you've got two complacent, corrupt, authoritarian groups, funded by people who benefit financially from the status quo, who spend all their time trying to figure out how to win elections and don't have any inclination to also bother thinking about where this country ought to go.

RE: The Political Scene: The Fall of Conservatism

There is a hell of a lot of smoke being blasted up around this WVWV situation. The PR strategy here is confusion. I offer this as what I consider clarity. The linked news article is from February.

Sarah Johnson, communications director for the organization, said Friday that not including information about the source of the voter registration effort was "absolutely an accidental omission."

She said the group was changing its nationwide phone alerts to make clear who is coordinating the effort.

Its May. If this was a mistake, they would have cleared it up in nearly 3 months. It doesn't take THAT long to change out a recording in a mass calling machine. As far as I can tell at no point in this controversy have they specifically addressed why they did not change their recordings after they said they were going to.

This is not proof that they were deliberately engaged in voter suppression. There are three possibilities:

1. They were lying about this being a mistake. They were engaged in voter suppression.

2. They were lying about this being a mistake. They have found unidentified recordings to be more effective for some legitimate reason other than voter suppression. If they were lying, the problem that the general public has is that we have no reason to accept that their further insistences that they are not engaged in voter suppression are honest.

3. They are so incompetent that they managed to create a voter suppression scare, literally promise the general public that they were going to address the issue, did absolutely nothing, and created the exact same voter suppression scare again.

Door number 3 is the only option where I think we get to be comfortable with this organization, however, I'm not convinced that it's credible that these experienced "professionals" are that incompetent. I can't think of a place where I've ever worked where if I made a mistake that caused the Virginia Police Department to issue a public advisory upper management would not have been directly involved. People just don't get caught up in problems like that and then blow it off and not do anything. Thats the sort of problem that people tend to take very seriously.

Virginia voter registration effort proves legit after fears of scam | HamptonRoads.com | PilotOnline.com

In addition to happily showing off blasphemous images of Christ, Lessig is also known as a digital communist (read the linked article for the substance of why he's called that) Lessig believes there should be no such thing as intellectual property rights -- patents and copyrights should be tossed. Lessig's anti-property theories give businesses and a lot of regular folks the heebie-jeebies. After all, if the government can strip you of your intellectual property, why can't it take away your real property?

This got picked up by Limbaugh. Lessig responds here. Don't miss the comments in his thread. If you've wondered how completely disingenuous the scoring of political points gets its hard to imagine the layers of reasoning getting more twisted up than this.

Republicans attack Obama for associating with Lessig

The Bush administration said yesterday that it plans to start using the nation's most advanced spy technology for domestic purposes soon, rebuffing challenges by House Democrats over the idea's legal authority.

Homeland Security Secretary Michael Chertoff said his department will activate his department's new domestic satellite surveillance office in stages, starting as soon as possible with traditional scientific and homeland security activities -- such as tracking hurricane damage, monitoring climate change and creating terrain maps.

The NAO surge continues roughly as you'd expect ...

"I have had a firsthand experience with the trust-me theory of law from this administration," said Harman, citing the 2005 disclosure of the National Security Agency's domestic spying program, which included warrantless eavesdropping on calls and e-mails between people in the United States and overseas. "I won't make the same mistake. . . . I want to see the legal underpinnings for the whole program."

Thompson called DHS's release Thursday of the office's procedures and a civil liberties impact assessment "a good start." But, he said, "We still don't know whether the NAO will pass constitutional muster since no legal framework has been provided."

I think there is some reasonable debate here about whether people have no expectation of privacy in regard to things that are only visible from above. At the time the Constitution was written, certainly, a hedge afforded some privacy.

Administration Set to Use New Spy Program in US

This is basically just a coverage of the facts as they exist so far, but I found this observation objectionable:

Another consideration to take into account is the likelihood of illegal materials
being smuggled into the United States through laptops and electronic storage devices.
As stated in Ramsey, “[t]he border search exception is grounded in the recognized
right of the sovereign to control...who and what may enter the country.”56 Laptops
can present a problem to the national interest in controlling what enters the country
because the vast and compact storage capacity of laptops can be used to smuggle
illegal materials. In light of this, routine searches of laptops at the border may be
justified because of the strong government interest in preventing the dissemination
of child pornography and other forms of “obscene” material that are oftentimes
contained in laptops.57

This is a phoney rationalization. I think it is astronomically unlikely that people are intentionally sneaker netting illegal materials into the country on laptop hard drives. People looking to transfer data typically do it over the internet, and if its illegal data they'd likely encrypt it. An important bit of self examination that the legal system needs to perform here is to ask itself why its perfectly fine for the police to rifle through data if it enters the country on a hard drive, certainly without a warrant and possibly without any "reasonable suspicion" at all, but a warrant is required to look at the same data if it is transfered across the same border over the internet. One of these two conclusions must be wrong. Furthermore, at a border the police might ensist on being able to seize computers or detain people if passwords aren't offered, but certainly the police cannot demand encryption keys for overseas telecommunications!

These inconsistencies lend to the conclusion that these searches are an abuse of a specific loophole in the law that only occurs in a particular context rather than a reasonable strategy that fits well into an overall approach to law enforcement and civil liberties. Certainly most if not all smuggling is occurring online, and most if not all illegal material discovered in border searches is discovered because people happen to carry a lot of personal data around with them on laptops when they travel and not because there was a primary intent to travel for and use the laptop as a vehicle to transport the data to another country for distribution to people in that country.

Another justification may be to facilitate searches of laptops
owned by suspected terrorists which may contain information related to a planned
terrorist attack.

While technically correct, its possible that terrorists might do anything. If the possibility that terrorists might do something means that the 4th amendment must be completely disposed of in that context, the 4th amendment must be completely disposed of in all contexts. The fact is that it is astronomically unlikely that law enforcement will happen upon a terrorist plot at random through random searches of laptop hard drives, and searches of laptop hard drives also do not fit into a specific strategic plan to eliminate terrorism. This is another a posteriori attempt at rationalizing the abuse of a loophole.

RE: Border Searches of Laptops and Other Electronic Storage Devices